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Constitution is a basic document
which sets out the framework for governance and exercise of power. It defines
the powers of the institutions and sets out the relationship that exists
between different state institutions. It also describes the powers within which
these institutions have to work and what would be the nature of relationship of
the individual with the state.
At
the time of establishment of Pakistan an Interim constitution was introduced in
Pakistan which was a modified version of the India Act 1935.The task of framing
the future constitution was assigned to the CA of Pakistan that came into
existence on Aug 1947.We will discuss that what were the stages and what were
the steps that were taken for framing the constitution of Pakistan.
The
whole process of constitution making started with the passing of the Objective
Resolution. The Objective Resolution which was passed in March 1949 outlined
the basic principles and foundations of the constitution. The principles that
had to be kept in mind by the constituent assembly of Pakistan while framing
the constitution. In a way the Objective Resolution not only identifying the
objectives, the goals they wanted to achieve it was also setting out the
priorities that had to be pursued.
Once
the Objective Resolution was passed by the Constituent Assembly then the steps
had to be taken for the formulation of the constitution and the 1st
step after the passing of the Objective Resolution was to set up the BPC (a
committee comprising the members of theca of Pakistan).The strength of the BPC
was fixed as 24.But the committee had to co-opt more members if it needed but
at least there were 24 members they were Muslims and non-Muslim members and
also women were the members of the BPC.Along with BPC some sub committees were
also set up primarily to assist the BPC.These sub committees were assigned some
specific tasks to deal with some specific issue and I can give you examples
that one such committee dealt with the issue of federalism. What kind of
federal model Pakistan was to adopt, this sub committee was to look into the
matter and then report back to BPC.There were other sub committees for example
a committee on judiciary to look into the judicial set up that was to be
established in Pakistan. Another sub committee on fundamental rights the civil
and political rights that were to be given to the citizens of Pakistan and
there was also a committee on the minorities the non Muslims who were also the
citizens of Pakistan.
So
in this way there were a lot of sub committees I have given you some examples
but there were more sub committees than I have mentioned. So the BPC and the
different sub committees deliberated on different aspects of constitution
making and then they prepare a report that is called the BPC First report.
First Basic Principle Committee’s
Report: 1950:
We
are calling it 1st report because the BPC prepared more than one
report so that we are calling it 1st and 2nd report and
so on so that we can identify the different efforts made by the BPC.So the 1st
report was presented to the constituent assembly in 1950 and this report
outlined certain broad and key principles, it was not framing the constitution,
it was identifying certain broad principles. That was to serve as the basis and
foundations of the constitution.
Let
me mention certain recommendations which the BPC, s 1st report of
1950 made so that you have an idea about the kind of system they wanted to
introduce in Pakistan.
1.
First important recommendation by the BPC report was that the Objective Resolution
would be included in the constitution of Pakistan as the directive principles
of policy as guideline of policy making.
2.
Another important recommendation was that the head of the state that was to be
named as the president was to be elected by the joint session of the parliament
for five years; it means that a person could hold the presidential office for
five years. The president was given some discretionary powers and certain other
categories of power were recommended to be assigned to the president. Although
the authority was to be exercised by the PM.
3.
So for as the legislation was concerned the 1st report had
recommended that there will be two houses the upper house and the lower house
and the principle recommended here for the composition for the two houses was
that the upper house all provincial units have equal representation and in the
case of lower house recommendation was to be given on the basis of population,
it means that if a province have more population it will have more representation
and in that case East Pakistan had more population than West Pakistan and it
had more representation in the lower house. So for as powers were concerned
powers were equally divided between the two houses that meant that both houses
had same kind of powers
4.
Cabinet and the PM were to be answerable to both houses of the parliament.
5.
In this way it tried to provide certain basic principles, however this report
was silent on the issue of National Language what would be the National
Language of Pakistan the report was silent and it didn’t make any kind of
recommendation.
Criticism:
When
this report was presented to the Constituent Assembly there was criticism in
the house and outside the house one basic criticism was on the issue of
representation which was an important issue the constituent assembly had to
deal with and here we see that on the question of representation there was a
criticism that if you provide equal representation to all the units of a
federation then the Western part had more representation because the western
part had more units and there was only one unit in East Bengal. So the feeling
was that the Western part would have more representation. Then there were
couple of other issues that were raised in the constituent assembly with reference
to the 1st report. For example the issue of equal powers to both
houses the general principle is that the lower house has more powers and the
upper house has less powers that is the standard principle in the parliamentary
system of govt but here both houses had equal powers so this was criticized and
then the issue of national language that it should said something about
national language.
Now
keeping in view this criticism it was decided that the BPC will review the
report in the light of points raise and criticism in the constituent assembly.
So the constituent assembly deliberated on this so that the points raised in
the constituent assembly and outside could be incorporated and the report is
made more acceptable to the representatives. So it reviewed the recommendations
and brought back the revised or the second report.
Second BPC Report 1952:
The 2nd report or the revised report generally
followed the same principles but it tried to accommodate the criticism made on
the 1st report and I will give you just one or two examples to
illustrate my point that what kind of changes it made in the 1st
report.
- One issue was the question of representation how should different provinces of Pakistan one province in the Eastern wing and more than one province or the administrative units in the Western part should be provided representation. So the 2nd report followed the principle of equal representation to both wings of Pakistan.60 members from the Eastern wing and 60 members from the Western wing or the Western part and then these 60 seats allocated to the western part were further divided among the different provinces of the western part. The same principles applied to the lower house 200 seats were given to the Western part and 200 seats for the Eastern part and then again the western seats were further divided among various provinces also different administrative units in the western part of Pakistan.
- More powers were to be given to the lower house the house which represents the people that was given more responsibility.
- It also emphasized that in Pakistan law making would be n accordance with the principles of Islam. This was in a way a reflection of the Objective Resolution where sovereignty over entire universe had been assigned to Almighty Allah and it was to be exercised by the state of Pakistan through the representatives of the people within the limits prescribed by Him and there would be no law which violates the principles and teachings of Islam.
- In order to facilitate that it was also decided that an advisory board comprised of 5 religious scholars was constituted who would advise on the matter of law making in accordance with the principles and teachings of Islam.
2nd
report was also silent on the issue of national language. However it definitely
accommodated some demands, the issue of representation the fear that the East
Pakistan would dominate West Pakistan was care off.
Criticism:
However
there was criticism that why equal representation. In the case of the 1st
report some were saying equality and here some were saying why equality had
been created. But the 2nd report accommodated the issues that were
raised in the 1st report. This report was declared against the
principles of federation. The West Pakistan favored equality only for upper
house. While the report was being discuss there was a political crises in
Pakistan.PM Nazimuddine was removed from his office due to this crises and the
new PM Ch.Muhammed Ali became the new PM.
Third Report (Muhammad Ali Bogra Formula)
1953:
Ch.Muhammad
Ali and his team deliberated on all the issues and prepared a report which s
called as 3rd report but generally in Pakistani history it is called
as The Muhammad Ali Formula because MAB was the PM and under his
leadership a new set of proposals was prepared which he represented to the
Constituent assembly and therefore it is generally describe as the Muhammad Ali
Formula for the constitution making.
This
formula was presented in October 1953 revised the original proposals in the lights
of the comments and criticism and it adopted a novel procedure for providing
representation to different units of Pakistan. It decided that in the case of
upper house there will be equal representation to all the units of Pakistan and
for this purpose Pakistan was divided into five units’ one unit was East
Pakistan and four units were in West Pakistan and each unit was given equal
representation it means that in the upper house 10 members were from Eastern
part and 40 members were to come from the four units of West Pakistan.
In
the lower house more representation was given to Eastern part because that had
more population than the western part. So according to this formula 165 seats
were given to East Pakistan and from the western part the strength of the
members was 135 and this was the application of principle of representation on
the basis of population. So in this case the standard principle of federalism
was followed that is in the upper house the units of federation were given
equal representation and in the lower house the units are represented on the
basis of population.
However
there s a unique feature here although the standard principle of federalism is
followed but whenever the parliament met in a joint session there was parity or
equality between the two wings of Pakistan. Let me explain this in the case of
Eastern Pakistan it had 10 members in the upper house and 165 in the lower
house the total were 175.In the case of Western Part there were 4 units each
sending 10 members and total 40 members and in the in the lower house West
Pakistan was to send 135 members and total members from West Pakistan were 175,
So it is the principle pf parity or equality when the parliament meet in a
joint session.
There
was another provision provided in this formula that although decisions were to
be made by the majority vote but this decision could not be effective unless at
least 30% of members from both zones vote in favour of this, So 30% members
from both wings are required to have majority for any law making. In this way
this proposal incorporated the principle of parity with inter dependence.
Parity in a sense that in case of joint session both wings have equal
representation.Inter dependence that 30% member from both wings are included in
the required majority for any law making. So in other words one wing could not
get it away what it wanted, it had to seek the support of the other side, so
parity and interdependence are built in the system through this proposal.
Criticism:
This
proposal provided for equal powers to both houses and they could also take up
issues in joint session. This proposal was received with greater welcome
however there was some criticism. There were certain points mentioned here by
the members were, one issue was that it was providing for unreasonably complex
process. You divide Western part into four units and Eastern part in one unit
then the allocation of seats that is to be done parity at the joint session
level and then 30% clause, so some people were saying and some newspapers were
writing articles that this would become a complicated process. But generally
this proposal was accepted although there was criticism over here and there in
the parliament and outside the parliament.
Another
issue that attracted some criticism was the issue of equal powers to both
houses and some people were saying that since the lower house represents the
people therefore lower house should have more powers but in this proposal both
houses were given equal powers. Another significant measure during this period
which facilitated the constitution making was the settlement of the language
issue. In 1954 he Constituent Assembly of Pakistan decided that the Bengali and
Urdu would be the national languages of Pakistan. This decision facilitated the
constitution making process.
The
acceptance of two languages helped to defuse the controversies that had emerged
in constitution making. In this way this issue amicably settled to the
satisfaction of most political leaders and political parties.
After
this the Constituent Assembly devoted itself toward the making of the
constitution and the drafting of the constitution started that is by the summer
of 1954 all the basic principles had been agreed to by the CA and drafting had
started and in fact by October 1954 good part of the constitution had been
drafted by the committee or group of people ,constitutional experts, legal
experts who were drafting the constitution, and it was assumed that very
shortly the draft constitution would be presented to the constituent assembly
that would deliberate on it discuss the draft and make changes if required and
ultimately the constitution would be approved and it was expected that very
soon Pakistan would have its own constitution.
However
a sudden development in the same month October 1954 created a situation that
delayed constitution making and that development was on 24 October 1954 GG
Ghulam Muhammad decided to dissolve the CA of Pakistan exercising his powers as
the GG.He argued that the CA of Pakistan had been dealing with the constitution
for a long time, that the CA came into existence on Aug 1947 and this was Oct
1954 and his argument was that this CA was not able to make the constitution
and it had make the constitution making a perpetual process therefore he could
use his powers to dissolve the CA,that mean that the whole effort to make the
constitution came into a standstill. Dissolution of the CA also meant that the
govt of PM Muhammad Ali Bogra came to an end but the GG asked him to set up a
new govt which included some old ministers and some new ministers and in this
way constitution making was delayed.
One
result of this dissolution of the CA of Pakistan by the GG was that this matter
was taken to the superior judiciary foe adjudication; the president of the CA
at that time Maulvi Tameezuddin moved the case first to Sind chief court and
then to the federal court of Pakistan and this was known as the Tameezuddin
case. This legal and constitutional battle in the Sind chief court and then in
the federal court went on for several months and the federal court through
various judgments which it gave from time to time and also through its advisory
opinion which the federal court gave to the GG during the same period the
ultimate decision or the resolution was that the GG was able to get a away with
the dissolution of the CA of Pakistan but the federal court directed that the
new CA will have to be elected.
GG
could not nominate anybody but it had to be elected therefore by keeping in
view the judgment of the federal court and the advisory opinion of the federal
court the govt of Pakistan decided to hold new elections for the 2nd
CA.These elections were indirect that were held in June and July 1955 and the 2nd
CA started its session in July 1955.In the case of 2nd CA two things
were different from the 1st CA.In the 1st CA the ML was
the majority party while in the 2nd CA no political party had an
absolute majority and in the case of 2nd CA the membership was 80
out of which 40 from East and 40 from West Pakistan so in a way it was a principle
of equality and parity.
The
2nd CA took up on its task of framing the constitution of Pakistan
and in order to deal with this issue the 2nd CA did not start from
the beginning, it could make use of all the work done by the earlier CA.It was
in a way building on what the 1st CA had done. The important step
taken by the 2nd CA was the integration of the province of West
Pakistan and it is also known as the One Unit Scheme for Western Pakistan. In
the case of West Pakistan there were 3 provinces, Balouchistan was not a full
province but a different administrative unit, other than these 4 major units
there were princely states, what was done in 1955 that all these administrative
units in the West Pakistan were integrated into the province of West Pakistan.
Smaller
administrative units were abolished all the provinces and units in West
Pakistan lost their separate identity and were integrated into West Pakistan.
So this is or what is called as the One Unit Scheme for West Pakistan and
because of this there were only two provinces in Pakistan East Pakistan and the
West Pakistan and in this way the issue of representation was resolved,
although in the smaller provinces and units of West Pakistan there was
criticism of setting up of this integrated province of West Pakistan.
Nevertheless,
this integration in the constitution making process in Pakistan and after that
the CA began to deal with the constitution, it discuss the constitution and the
draft of the constitution was released for the CA and for the public at large
on 8th January 1956 that is the draft text of the constitution. This
text was discussed in the CA, outside the CA and then the CA approved the
constitution on 29th Feb 1956.The next stage in the making of the
constitution was the approval of the constitution by the GG of Pakistan, that
is his signatures were required and at that time Sikander Mirza was the GG of
Pakistan and on March 2nd ha signed the constitution that has been
approved by the CA and in this way it became the constitution of Pakistan. This
constitution was enforced on 23rd March 1956 and it replaced the
Interim Constitution of Pakistan that was introduced in Pakistan in Aug 1947.In
this way the long run effort to make the constitution of Pakistan was
successful in giving this country a constitution of its own which became
operative on 23rd March 1956.
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